Lawyer for ousted stop-frisk judge fights order

AP News
Posted: Nov 06, 2013 8:11 PM

NEW YORK (AP) — A lawyer for a federal judge removed from court cases challenging the New York Police Department's stop-and-frisk policy asked a three-judge appeals panel Wednesday to reconsider its order, saying the judges had offended due process by ousting her without letting her defend herself.

Attorney Burt Neuborne filed papers with the 2nd U.S. Circuit Court of Appeals in Manhattan. He told The Associated Press he is representing U.S. District Judge Shira Scheindlin, who was removed from the case after last week's order.

He told the three-judge panel that it should reconsider its claim that Scheindlin ran afoul of the code of conduct for judges or should pass the issue along to the full 2nd Circuit.

"The motion panel's failure to have provided the district judge with notice and an opportunity to defend herself was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between district and circuit judges, it is an affront to the values underlying the Fifth Amendment's guarantee of procedural due process of law," Neuborne wrote.

Following a lengthy bench trial, Scheindlin ruled in August that police officers sometimes carried out stop-and-frisk unconstitutionally by discriminating against minorities.

The appeals court said she had misapplied a ruling that allowed her to preside over the stop-and-frisk cases and had made statements in media interviews that jeopardized the appearance of judicial objectivity.

Neuborne filed his papers a day after voters in New York City elected Democrat Bill de Blasio as their new mayor. De Blasio has pledged to improve community-police relations by reforming stop-and-frisk, a tactic that lets police question people when there is reasonable suspicion that a crime is about to occur or has occurred.

Previously, de Blasio has said he would drop the city's appeal of Scheindlin's ruling but he could also settle with those urging the reforms, eliminating federal oversight.

Stop-and-frisk has been around for decades but its use grew dramatically under Mayor Michael Bloomberg's administration to an all-time high in 2011 of 684,330 stops, mostly of black and Hispanic men.

Scheindlin concluded the city violated the civil rights of tens of thousands of blacks and Hispanics by disproportionally stopping, questioning and sometimes frisking them. She assigned a monitor to help the police department change its policy and training programs on the tactic.

After she was removed from the case, Scheindlin issued a statement saying she had properly presided over the cases because they were related to a previous case she had heard. She also consented to interviews under the condition that she wouldn't comment on the ongoing case. "And I did not," she said.

In court papers, Neuborne said federal rules of appellate procedure require that when a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before the appeals court and have a chance to be heard.

Neuborne told the AP he was not suggesting in his court papers that Scheindlin appear herself before the appeals court.

"I think it's more dignified if we appear," he said.

He noted that no party during oral arguments had requested Scheindlin's disqualification.

The city law office declined to comment Wednesday.